CAAFlog » Court-Martial News

In what I believe is the first crisis that threatens to shake up the military’s nascent victims’ counsel programs, the Marine Corps Times reports here about an investigation into an allegation that a Marine Corps victims’ legal counsel counseling a victim/client to destroy evidence:

The head of the Marine Corps’ Victims’ Legal Counsel program in Japan is at the center of a legal probe after allegedly instructing a client to destroy documentation relevant to a case.

Maj. Chantell Higgins, a 15-year officer and judge advocate who is serving as regional special victims’ counsel for Legal Services Support Pacific in Okinawa, Japan, is being investigated by the Naval Criminal Investigative Service, according to a Marine official. The official spoke on the condition of anonymity as he was not authorized to discuss the case.

NCIS officials confirmed the existence of an investigation, but said they could not comment on the case as the probe was ongoing.

The investigation is centered on allegations that Higgins instructed a victim she was advising in an active sexual assault case to destroy information on a personal cellphone that was relevant to the case, but may have reflected negatively on the victim, according to several sources in the Marine Corps’ legal community who are familiar with the case.

While not a court-martial, this prosecution is notable. Bloomberg report here. NY Times report here. The NYT report states:

Mr. Petraeus has agreed to plead guilty to one count of unauthorized removal and retention of classified material, a misdemeanor. He is eligible for up to one year in prison but prosecutors will recommend two years of probation and a $40,000 fine.

Interesting developments in the Hasan case which should be proceeding to post-trial review of  his death sentence.  Here is a Stars & Stripes story about an upcoming hearing to address post-trial matters.  And here is another story (belatedly, its from Oct. 2014) about some crazy writing of the confined former Major.

Update: According to this Military Times report by Michelle Tan and Andrew Tilghman, “the Army says there is no truth to media reports claiming a decision has been made to charge Sgt. Bowe Bergdahl with desertion.”

A number of news outlets are reporting that Army Sergeant Bowe Bergdahl, who was held by the Taliban for a half-decade before being released in exchange for five Guantanamo prisoners, has been charged with offenses related to his capture.

According to this Reuters / NBC report:

U.S. Army Sergeant Bowe Bergdahl, who disappeared from his base in Afghanistan in 2009 but was released last year in a prisoner swap with the Taliban, will be charged with desertion, according to NBC.

The television network, citing senior defense officials, said the charges could come within a week.

Reuters could not immediately confirm the report, and Bergdahl’s attorney was not immediately available for comment.

But according to this report from the UK’s Daily Mail, Sergeant Bergdahl has already been charged:

Speaking on Fox News’s The O’Reilly Factor, [retired Lieutenant Colonel Tony Shaffer] said: ‘His attorney was given what we call a charge sheet. A charge sheet is results of the investigation listing out the articles of the Uniform Code of Military Justice that have been violated. The key violation is desertion. And this has been done. The decision has been made. Let me be very clear. As a corporate entity, the Army has decided that they want to pursue Bergdahl for this violation.’

Sgt. Bergdahl was captured by the Taliban after he left his unit without permission in 2009. 

And here is the video of the report on The O’Reilly Factor:

You can read all of our coverage of the Bergdahl case here.

Thanks to reader tips, I can provide the following links to news reports of the court-martial conviction of Army Major Erik Burris, formerly the Chief of Justice for the 82nd Airborne Division.

WNCN (a North Carolina NBC affiliate) reports here that:

The court-martial of United States v. Major Erik J. Burris concluded after six days of proceedings. Burris, a former 82nd Airborne Division chief of justice, was found guilty two specifications of rape, forcible sodomy, four specifications of assault and disobeying an order from a superior commissioned officer.

The court-martial found Burris not guilty of four specifications of assault, two specifications of sexual assault, two specifications of forcible sodomy and two specifications of communicating a threat.

Burris pleaded not guilty to all charges.

He was sentenced to forfeiture of all pay and allowances, 20 years confinement and dismissal from the service.

The Fayetteville Observer (a daily newspaper) has this report, with no significant additional details. Additionally, there is this Associated Press report, also with no significant additional details.

I believe that our only prior coverage of this case was in this April 2014 post, where I noted this March 2014 report from Fox40 Sacremento that appears to include details from a press interview of Major Burris. There was also (briefly) some significant discussion of the results of the court-martial in this week’s TWIMJ post.

Thanks to all readers for the tips. I plan to update this post with any significant new developments.

Update 1: The official news release from the Fort Bragg Press Center is available here. It is identical to the WNCN report quoted above.

Update 2: Here is a rather unflattering (to the military justice system) Associated Press report about the case, with references to the Sinclair case.

Did anyone catch the PBS Newshour piece on “How military sex offenders fly under the radar after returning to civilian life“?  Discusses the disconnect between sex offender registries and court-martialed sex offenders.

The murder trial at Ramstein is underway.  Wednesday featured a videotaped confession by the accused, Air Force Staff Sergeant Sean Oliver, according to Stars and Stripes, here. Oliver is charged with the murder of Navy Petty Officer Dmitry Chepusov.  The “four hours of video [was] recorded during an interview of Oliver by Air Force special agents at Ramstein Air Base in late December 2013. The interview was conducted five days after German police pulled Oliver over during a traffic stop and found Chepusov dead in his car’s passenger seat.”

Fat Leonard (aka Leonard Francis), the head of Singapore based logistics firm Glenn Defense Marine Asia who ensnared several officers in a bribery scandal, will plead guilty today before a US Magistrate in San Diego, here (San Diego Union-tribune).

A human interest piece on the Navy Victim’s Legal Counsel program from S&S here.

Reps. Duncan Hunter, R-Calif.; Ryan Zinke, R-Mont.; and Matt Salmon, R-Ariz., have taken an interest in the convening authority action in 1stLt Clint Lorance’s case here (Army times).  Lorance was convicted and sentenced by a court-martial in August 2013 to 20 years in prison for ordering his platoon to open fire on two Afghan men in July 2012. Prosecutors contended that the officer violated ROE and that the men had not demonstrated hostile intent. New evidence included in a clemency petition to the CG of the 82nd Airborne deals with the status of the two men that were shot as potential insurgents/jihadists.  Prior coverage here and here.  Now if other members of Congress have their way, will this portion of the system even be available?

Five more Gitmo detainees were released the Pentagon announced on Wednesday, USA Today report here.  The report states that, “All five were captured in Pakistan and detained by the U.S. as suspected al-Qaeda fighters. U.S. officials determined it was no longer necessary to detain them but decided they couldn’t be sent to Yemen because of instability there.”

Here is the Army News Service’s take on the FY2015 NDAA Mil Jus changes. It is a tad better than the Military Times coverage we posted last week. The article includes observations from Lt. Col. John Kiel Jr., chief of policy branch, criminal law division, Office of the Judge Advocate General.

The Chairman of the Joint Chiefs of Staff said Commander US Forces Command is the potential convening authority in the Sergeant Bergdahl case, here (Military Times).  General Dempsey said he expects a decision of disciplinary action soon, but stayed away from any appearance of UCI by saying anything more. Bergdahl could face court-martial for allegedly leaving his post in Afghanistan before being captured and held by Taliban sympathizing militants from the Haqqani network.

I was just reminded that DoD’s Judicial Proceedings Panel (JPP) has a hearing this Friday, see here.  The Dec. 16, 2014 meeting of the JPP featured appearances by all the service judge advocates.  See speaker bios here and transcript here.  Colonel John Baker, a friend o’ the blog, appeared on behalf of Major General Ewers.

More on 1stLt Lorance’s quest for a new trial from Army Times, here.  Prior coverage here. Update:  Here is the latest RCM 1107 memorandum submitted by Lorance’s counsel, courtesy of his counsel.

A not guilty plea in the Staff Sergeant Sean Oliver murder trial in Germany, here (S&S).  Prior coverage here.

Speculation abounds over what the Army will do with the Bergdahl case.  See coverage here (Killeen Daily Herald) and here (Killeen Daily Herald coming to the opposite conclusion) to link a few. Prior coverage here, here, and here. For those in Taliban custody for the last year, Sergeant Bergdahl was returned to US forces in May 2014 from Taliban/Al Queada custody in a prisoner swap of sorts, see coverage here (NYT) and here (WSJ).  But most of the coverage of the swap for Bergdahl, see e.g. WaPo here, focused on the fact that Bergdahl allegedly walked off his post in Afghanistan before being captured by insurgents.

Military Times coverage of the FY2015 NDAA changes to military justice, here, still misinterpreting the 26,000 estimate in DoD reports. I know people at Military Times read this blog. C’mon man, try to at least describe it correctly.

AF Staff Sergeant Sean Oliver goes on trial Monday, Jan. 12, 2015 for the alleged premeditated murder of AFN reporter Petty Officer 2d Class Dmitry Chepusov, S&S report here. Oliver faces LWOP for pre-med murder rather than the death penalty after the military made concessions on the DP to o rain evidence from German investigators. Oliver was arrested by German authorities with Chepusov’s body in the passenger seat of his car. Prior coverage here and here.

Fox and Friends had a segment last night, here, about alleged Brady violations in the court-martial of 1stLt Clint Lorance.  Lorance was convicted and sentenced by a court-martial in August 2013 to 20 years in prison for ordering his platoon to open fire on two Afghan men in July 2012. Prosecutors contended that the officer violated ROE and that the men had not demonstrated hostile intent.  The new evidence included in a clemency petition to the CG of the 82nd Airborne  deals with the status of the two men that were shot as potential insurgents/jihadists.

Here is our prior coverage and coverage of the verdict, here (WaPo).  1stLt Lorance’s counsel (featured in the Fox video) provided us with a copy of the clemency materials, here.

Sen. Kirsten Gillibrand is making a push to attach a bill removing commanders authority to refer sexual assault cases to the 2015 NDAA, see NYT report here.  The bill faces opposition both from detractors of the concept of removing commander authority and those that think Gillibrand shouldn’t be the only Senator able to propose amendments. The prospect of new amendments to the already delayed NDAA could derail the entire process. Republican Sens. Rand Paul and Ted Cruz are co-sponsoring the bill. Here is AF Times coverage of Col (ret) Don Christensen’s appearance on the Hill in support of the Gillibrand bill.

The first Air Force officer’s court-martial is scheduled in the cheating and drug use investigation in the Air Force’s missile corps. AP (via Pitt Tribune-Review) reports here that the court martial is scheduled for Jan. 21, 2015:

Second Lt. Nicole Dalmazzi of the 341st Missile Wing at Malmstrom Air Force Base, Mont., is the first missileer, as launch officers are called, known to have been charged since the drug investigation was made public in January . . . .

The disclosures of alleged exam cheating and illegal drug use accelerated a wave of embarrassing news about the nuclear missile corps, which has been beset with discipline problems, low morale, leadership lapses and resource shortages. . . .

Dalmazzi was charged with illegal drug use and obstructing the Air Force Office of Special Investigations probe by dyeing her hair to “alter the results of potential hair-follicle drug tests,” according to Josh Aycock, a spokesman at Malmstrom. He would not elaborate on her alleged actions or the tests.

The DoD IG is investigating the Air Force Academy’s handling of sexual assault cases against Academy athletes reports the Colorado Springs Gazette (via Denver Post), here.

Here is a link to Yahoo News coverage of Colonel Don Christensen’s decision to retire rather than take a spot on the Air Force Court of Criminal Appeals. Say what you want about whether the Air Force is punishing Christensen for his comments about the Mil Jus system (and I know there has been much said in comments), but the overwhelming message isn’t a positive one about the image of AFCCA. Good luck Col C in his new role at Protect Our Defenders, because word is he will need it if he is interested in changing the perception of that organization.

Here is Navy Times’ interview with the NCIS Director, Andrew Traver, on the organization’s priorities after his first year at the helm.

Here is Marine Corps Times coverage of the death of a Marine Corps sniper reduced at NJP over urination videos. Sgt Robert Richards was reduced to Corporal at NJP over his role in the videos, report here. He was subsequently given a medical discharge for combat related injuries. The Marine Corps Times report says that his death was due to “drug toxicity” related to prescription drugs prescribed for pain that stemmed from his combat injuries.

Military Times reports here on VA benefits for victims of sexual assault:

The Veterans Affairs Department announced Monday it is expanding eligibility for veterans to access mental health treatment at VA hospitals or clinics if they were victims of rape, sexual assault or harassment while serving in the military.

Every Sunday at 1 p.m. we publish This Week in Military Justice, a summary of upcoming military justice events. While putting together today’s post I saw that tomorrow the Air Force CCA, sitting en banc, will hear oral argument in an interlocutory appeal:

United States v. Wright, No. 2014-10

Issue: Whether the military judge abused his discretion by abating the proceedings after the government complied with his discovery compliance order, proved beyond a reasonable doubt that no unlawful command influence or appearance thereof existed, and properly asserted the attorney-client and work product privileges.

To the best of my knowledge (and someone please correct me if I’m wrong on this) this is a sexual assault case that was dismissed last year after Air Force Lieutenant General Craig Franklin determined that an Article 32 pretrial investigation did not reveal enough evidence to support trial by court-martial. (update: a few readers have confirmed that this is the same case). For those who don’t immediately recognize the name, Franklin was the convening authority in the Wilkerson case, our #5 Military Justice Story of 2013.

It seems we’ve covered the Wright case sporadically during the past year. In this post from February, I noted news reports about Franklin’s removal as convening authority and the convening of a second Article 32 investigation in the case. Then, in this post from March, I noted a news report that the case was referred for trial by the new convening authority. Finally, in this post from August, Mike noted the action that appears to be the subject of the Government appeal to the CCA:

The Wright court-martial drags on as Judge Kastenberg threatens to dismiss the case if he doesn’t see emails from the AF TJAG and SecAirForce. Stars and Stripes report here.  The case against Airman 1st Class Brandon T. Wright went to an Art. 32 and resulted in a recommendation of dismissal.  The CA was, unfortunately, Lt. Gen. Craig Franklin.  After he chose not to refer the case, senior AF officials became involved.  This resulted in a new Art. 32 hearing (now at JB Andrews) and a new CA, Maj. Gen. Sharon K. G. Dunbar, deciding to refer the case.  Defense counsel want emails between senior officials to determine if there was UCI.  Judge Kastenberg has agreed, but the Air Force is refusing to produce them, even for an in camera review by the judge.  Prior coverage here.

Unfortunately, that’s about all the detail I can find about the case that will be before the full AFCCA tomorrow (and my conclusion that it’s the same case is really only an educated guess). Considering the visibility of this case, the politically charged environment for sexual assault prosecutions at courts-martial, and the overriding need to avoid even the appearance of unlawful command influence, I’m saddened that we don’t have more information about this case.

However, I will note that the Government’s apparent refusal to produce correspondence for an in camera review reminds me of a recent case, also from the Air Force, where a similar attitude led to a dismissal with prejudice. In a published opinion issued last month in United States v. Bowser, __ M.J. __, Misc. Dkt. No. 2014-08 (A.F. Ct. Crim. App. Oct 3, 2014) (discussed here), the Air Force CCA affirmed the judge’s ruling that dismissed with prejudice charges of rape, forcible sodomy, and assault, after the trial counsel refused to obey an order for an in camera review of the prosecution team’s witness interview notes.

Whether the Air Force seeks to use Wright to re-litigate the issues it lost in Bowser remains to be seen.

Here is a link to Stars & Stripes article on the motions hearing in the court-martial of Air Force Staff Sergent Sean Oliver.  Oliver is accused of premeditated murder in the death of PO2 Dmitri Chepusov, a reporter with the  rmed Forces Network reporter.  Oliver is accused of “beating and strangling Chepusov at the house of another AFN airman in December 2013. Chepusov’s body was found in the passenger seat of Oliver’s car Dec. 14 after German police pulled Oliver over for driving erratically in Kaiserslautern.”  Military Judge Colonel Donald Eller denied a defense motion to suppress Oliver’s statements, among other rulings.  Prior coverage here and here.

Colorado Springs Gazette has this story on the court-martial proceedings at Fort Carson int he case of Sgt. Montrell Mayo, who is acccused of killing his girlfriend, Cpl. Kimberly Walker in a Colorado Springs hotel room after a Valentine’s Day rendevous went wrong.   It doesn;t appear from the latest reports that the death sentence is available inthis case.

I missed it, but thought we’d post a link to the very quiet retirement of a general accused of “sexual misconduct.”  Stars and Stripes article, here, about the retirement of Maj. Gen. Ralph O. Baker.  Here is a link to prior coverage of allegations of sexual assault against now Brigadier General Baker. Anchorage reports, here, that an  Alaska-based soldier’s court-martial  on murder and rape charges will begin next Monday at Joint Base Lewis McChord.  Sgt. Nathaniel Ulroan is charged with the premeditated murder of his three year old son and the rape of his wife. AP (via S&S) coverage here.

Former USAFA Cadet convicted of abusive sexual contact raises profile as standout on Alcorn Srltate football squad, ABC News coverage here. The article has some commentary on the Mil Jus system’s handling of Cadet Cooks’ case and sexual assault cases in general. Prior coverage here.